1988 P Cr (PLP)

This application is moved by the applicant, who is facing trial before the IIIrd Additional Sessions Judge, Karachi South for the offence punishable under section 10 of the Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance).

2. The facts of the case are that the applicant is Hindu by religion and belongs to Shahdadpur, but was working at Karachi, posing as Muslim with the name of Shahnawaz. Mst. Nusrat, a Muslim girl, who was also working with the applicant, contracted marriage with the applicant under Muslim rites under the belief that he was a Muslim. The marriage was consumated. After some time the applicant took his wife and his sister‑in‑law Mst.Rukhsana to Shahdadpur side, where he was caught hold of by the people and produced before the Councillor. The marriage was terminated by settlement between the parties on payment of Rs.10,000 as compensation by the applicant to Mst. Nusrat. However, the incident was reported by the Councillor to the Shahdadpur Police, who intimated Mehmoodabad Police Station, Karachi. F.I.R. was registered against the applicant under the Zina (Enforcement of Hudood) Ordinance and after due investigation challan was submitted in the Court of law.

3. Mr. Partab Rai learned counsel for the applicant does not dispute the facts as stated above, but contends that the marriage was not void, but merely irregular. In support of his contention, he has relied upon section 259(2) of Mahomedan Law by Mulla which provides that "a Mahomedan woman cannot contract a valid marriage except with a Mahomedan. A marriage, however, with an idolator or a fire‑worshipper, is irregular and not void." He relied upon subsection (3) of section 264 of Mahomedan Law which enumerates the examples of irregular marriage. Sub‑part (d) shows "a marriage prohibited by reason of difference of religion is irregular. "Under section 267 an irregular marriage may be terminated by either party, and if consumation has taken place, the wife is entitled to take dower, proper or specified whichever is less. He has also relied upon the case of Mst. Sughran Mai v. The State P L D 1980 Lah.

386. However, in the reported case the question at issue before the Court was not the marriage of a Muslim girl with a Hindu, but it was alleged therein that the applicant a minor girl, was not competent to contract marriage. However, effect of irregular marriage was considered and a learned Single Judge of Lahore High Court observed "the legal consequences and effect of an irregular marriage is to some extent different from a void marriage and therefore in a irregular marriage the penalty of Zina cannot be inflicted because the marriage in any case is not void according to (tenets of Muslim Law." The learned Judge in the reported case has discussed certain passages from the book "A Coda of Muslim Personal Law" by Mr. Justice Dr. Tanzil‑ur‑Rehman. The quotation from this book shows, that some books of Fiqh have considered that the marriage of a Muslim woman to an infidel who is the subject of a Muslim State to be irregular, but other books have considered such marriage to be void.

4. Even according to Mulls a marriage of Muslim woman with an idolator is not a valid marriage, but is an irregular marriage. According to Mulls, such marriage under Hanafi Law can be irregular valid, but according to Shia Laws the marriage can either be valid or void. 'Admittedly the marriage in the instant case was not valid.

5. The applicant is being prosecuted under Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Section 3 of the Ordinance provides that its provisions shall have effect not withstanding anything contained in any other law for the time being in force. Section 4 defines 'Zina' as under: ‑ "A man and woman are said to commit Zina, if they wilfully have sexual intercourse without being validly married." Thus, the offence of 'Zina' is complete, if there is sexual inter coursed without valid marriage. The stress is upon the validity of the marriage. Section 6 provides that "a person is said to commit Zina‑bil‑jabr if he or she has sexual intercourse with a woman or man, as the case may be to whom he or she is not validly married, in any of the following circumstances, namely; (a)

(b)

??????????? (c)

(d)??????? with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married."

6. The facts of the case prima facie disclose that Mst. Nusrat married the applicant under misconception that the applicant was Muslim and was named Shahnawaz, though the applicant himself knew that he was not a Muslim and his name was Shankardas and, therefore, he could not contract a valid marriage. The facts of the case appear to fall within the ambit of section 6(d) of the Ordinance. However, it is contended by Mr. Partab Rai that there is no evidence that sexual intercourse took place and that the offence was not witnessed by four persons as required under section 8(b) of the Ordinance. With regard to first contention the evidence before the police of Mst. Nusrat is that the marriage had been consumated and even otherwise unless otherwise proved, such presumption would arise where the factum of marriage is admitted.

7. Apparently the requirements of section 8(b) of the Ordinance does not appear to have been complied with in the instant case. Mr. Makhdoom Abdul Wall learned counsel appearing for the State submits that in such case the case would fall under section I. O.(3) of the' Ordinance and the maximum punishment in such a case is 25 years R.I. which also falls under prohibitory clause of section 497, Cr.P.C. Considering all the facts discussed above, in my opinion, at this stage it cannot be said that the applicant has not committed are non‑bailable offence. As such the bail application is dismissed. M.Y.H./S.159/K????????????????????????????????????????????????????????????????????????????????? Bail refused.